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The beneficiaries upon the execution of the weiler, 10 the court said: “The theory of a policy acquire thereby an interest which the failure of trust comes with more force and law recognizes and which the insured cannot stronger reasons than the doctrine of choses dispose of at his own will. This interest is in action. We regard the doctrine of choses as recognized by the authorities, and it is of action as not fully applicable, because it conlittle consequence whether it is called vested flicts in many cases with the controlling docor contingent." Without presuming to rec trine of insurable interest. The question is not oncile the cases which attempt to define the as to change of beneficiary, but as to reverter interest of the beneficiary in a regular life of the policy to the assured by reason of policy, we would suggest that much of the the death of, all the beneficiaries. On prindifficulty would be removed if the origin of ciple, and aside from any statute on the subthe doctrine be kept clearly in mind. As ject, we think that in this case the policy realready suggested, the only reason upon verted to Mr. Helwig, and at his death bewhich an insurance policy can be held a valid came a part of his estate. It seems to us contract is the interest of the beneficiary in that this was the manifest intention and unthe life of the insured, a contract of insur derstanding of all parties interested, and ance, for instance, upon the life of the hus that the result is just and equitable. While band in favor of the wife, being in the nature there may have been a vested interest it was of an irrevocable settlement or trust for the an interest not in possession, but in expectpurpose of protecting her against pecuniary ancy, liable to be devested by the death of loss and damage by reason of his death in the beneficiary before the death of the as. her lifetime. When we thus consider a pol sured.” In the case of a policy on the life icy of life insurance as more nearly resem of the husband payable to the wife, 'if living, bling and partaking of the nature of a trust and if not living to her children, where the than a chose in action, we make easy the wife dies first, the authorities are again in solution of many otherwise difficult prob conflict, some holding the policy payable exlems, and effectuate more closely the inten clusively to the children living at the death tion of the parties.

of the insured, while others bold that the Let us examine the authorities and care- policy vests at once in both wife and chilfully bear in mind the suggestions just dren at the same time, and the interest of offered. Take, for instance, the simple case any deceased child is transmissible to his of a wife, the beneficiary under a policy of heirs.12 In Hooker v. Suggla it was held that insurance on the life of her husband, who if “cbildren” be designated in a life policy predeceases the latter. Are her representa as beneficiaries, the interest vests at once in tives or his representatives entitled to the such as then meet the description, and is not proceeds? In other words, under a literal devested in favor of survivors by a death construction of the doctrine of vested inter afterwards. As already noted, New York est, is her interest transmissible to her beirs, and several other states reject this view and or, looking upon the proceeds of the policy apply the class doctrine to such policies, so as a trust fund, would her death within the | that under the rule there laid down only such lifetime of the husband be considered a ter- children take as are alive at the death of the mination of her interest in his life which insured. We believe that the New York alone sustained the policy in her, and, there- rule recognizes more clearly the evident pur. fore, a failure of the trust with reversion in pose of life insurance and lays down the the husband. The authorities are in con more equitable and reasonable construction. flict, some holding to the formers and others to the latter construction.' In Ryan v. Roth

10 50 Ohio St. 595.
11 United States Trust Co. v. Insurance Co., 115 X.

Y. 115; Schneider v. Insurance Co., 83 Mo. App. 68; 8 Drake v. Stone, 58 Ala. 133; Harley v. Heist, 86 Walsh y. Insurance Co., 133 N. Y. 408; Robinson v. Ind. 196; Libby v. Libby, 37 Me. 359; Insurance Co. Duval, 79 Ky. 83; Insurance Co. v. Hoffman, 110 III. v. Baldwin, 15 R. I. 106; Small v. Jose, 86 Me. 120. 603; Insurance Co. v. Webb, 54 Ala. 688.

Gambs v. Insurance Co., 50 Mo. 44; Ryan v. Roth 12 Hooker v. Sugg, 102 N. Car. 115; Glenn v. Burns weiler, 50 Ohio St. 595; Johnson v. Van Epps, 110 III. (Tenn. 1898), 45 S. W. Rep. 784; Re Conrad, 89 Iowa, 501; Haskins v. Kendall, 158 Mass. 224; Bickerton v. 396; Conigland v. Smith, 79 N. Car. 303; Insurance Jacques, 28 Hun, 119; Rollins v. McHatton, 16 Colo. Co. v. Palmer, 42 Conn. 60. 203

| 2a 102 N. Car. 115.

Life insurance exists solely for the protec was that a statute of Pennsylvania declaring tion of those wbo would be pecuniarily dam. that in all controversies relating to "life and aged by the insured's death. To permit fire insurance policies,” neither the constituthose who would not be so damaged to take tion nor by.laws, etc., of the company should under the policy would be to overturn the be received in evidence, does not include whole purpose and intent of such contracts. policies of insurance against bodily accident. Indeed, the doctrine of vested interest, as The court said: “The suggestion that the applicable to insurance contracts, cannot be act includes policies of insurance against carried out logically and literally,—the word bodily accidents seems to us to be quite in"vested” having a legal significance too admissible. The instrument sued on here is great and too extended to properly define the strictly an accident insurance policy. The rights and interest of the beneficiary. Noth primary purpose is to secure a weekly indeming more can be meant by the use of such nity in money to the insured in the event of words as applicable to life insurance, than his disability from accidental injury. In that the beneficiary named in the policy has certain specified contingencies, resulting such an interest in the policy that prevents from accidental injury, a specified gross sum the insured from interfering in any manner is to be paid. One of the latter is, death rewith her right to take under the policy, or to sulting from the accident within ninety days demand the proceeds upon the happening of thereafter. But this contingent provision all contingencies and upon compliance with does not make the instrument a life insurance all the conditions contained therein.

policy, either in a popular or in a legal sense.” It has been suggested that the doctrine of These are the only two cases that have come vested interest cannot be applied to accident within the knowledge of the writer suggestinsurance.13 In Hoffman v. Indemnity Co.,13a | ing that accident policies, with provisions the court held that the beneficiary in an acci for death benefits, were to be distinguished dent policy, until the death of the in- in any material manner from regular life sured, bas, at most, an inchoate and con- | policies. The question seems to be as yet an tingent interest, and the insured cannot open one whether the beneficiary, under such recognize her as a party to the con a policy, acquires a vested interest or not. tract having a present interest therein. We apprehend that, giving the word the limThis case did not squarely decide the ques. ited significance already suggested, i. e., the tion that the interest of the beneficiary was absolute, irrevocable right to demand the materially different from that of the benefi proceeds of the policy on the happening of ciary under a regular life policy, but clearly all contingencies and compliance with all shows how illogical would be a literal appli conditions, there is no material distinction to cation of the rule of vested interest to the be made between such policies and regular right of a beneficiary, where that right, under life insurance. But if by vested interest is the terms of the policy, is the most inchoate meant any absolute present right or interest and contingent that can be imagined. In in the proceeds of the policy (which we bethe case just referred to, a condition in an lieve in any case to be an unwarranted exaccident policy required the beneficiary to | tension of the right of the beneficiary), then give notice of the death of the insured within its application is, on the face of things, an ten days of the happening of the accident absurdity. causing it. Such a condition was held to be Endowment policies have also been sugimpossible, on the ground that the beneficiary gested as being without the rule of vested inacquired no definite interest in the policy terest.15 But for the same reason we have until the death of the insured. Another late just discussed in the case of accident policies, authority suggesting any difference between we believe any distinction untenable.16 The regular life and accident policies is the case interest of the beneficiary is as irrevocable in of Standard Life & Accident Insurance Co. v. Carroll.14 In that case the exact decision 15 Tennes v. Northwestern Mut. Life Insurance Co., an endowment policy as in a regular life observed under other aspects of this question. policy, and the insured can no more interfere Giving the word “vested” its full logical with this right in the one case than in the meaning, the beneficiary would have such a other. Of course, the enjoyment of the pro present interest in the proceeds of the policy, ceeds is contingent upon the insured dying while living, that even where the enjoyment within the endowment period, and the bene of the fund is conditioned on her survivorficiary cannot be said to have any present ship, such condition, or, in fact, any other interest, other than the mere right to demand condition annexed to her right to take under the proceeds of the policy, upon the happen. the policy, would be a condition subsequent, ing of all contingencies and compliance with and the burden of proving survivorship would all the conditions of the policy, which is the be, not on the beneficiary or her representsame right held by any other beneficiary in atives, but upon those who would seek to conany other kind of policy.

26 Minn. 271. 15 Hoffman y. Indemnity Co., 56 Mo. App. 301.

16 Pingrey v, Insurance Co., 144 Mass. 374; Lock13a 56 Mo. App. 301.

wood v. Insurance Co., 108 Mich. 334; Lemon v. In: 14 36 Fed. Rep. 567.

surance Co., 38 Conn. 294.

trovert her prima facie title to the proceeds The difficulties of this question are in of the policy.18 But, on the other hand, apcreased when it becomes complicated with plying the trust fund doctrine and giving to questions of survivorship. Suppose the in- | the words "vested interest” the limited sured and the beneficiary perish in a common meaning already suggested, the beneficiary disaster, and it is impossible to find, as a fact, would acquire no present interest in the profrom the evidence, which of them died first,-| ceeds until the death of the insured, and the in such a case in whom does the right to the distribution of the fund would then be govproceeds exist? The modern rule as to sur erned by the ordinary rules of construction, vivorship in a common disaster is well stated and the beneficiary could take nothing until and thoroughly discussed in the case of all contingencies and conditions of the policy Newell v. Nicbols. 17 The rule may be sum had happened or been complied with, the marized as follows: There are no presump: burden of proof in such case resting upon tions in law of survivorship in case of persons

her or her representatives. 19 In the case of who perish by a common disaster, but one Cowman v. Rogers20 tbe regulations of a who claims through a survivorship must prove beneficial association provided that, if the the survivorship. In the absence of other beneficiary named in the certificate should evidence, the fact is assumed to be unascer. die in the lifetime of the member, and if the tainable, and the property rights are disposed latter should make no other disposition of the of as if death occurred at the same time, not benefit, it should be paid to the member's because of a presumption of simultaneous widow, if no widow then to the children ; if death, but because there is no evidence or no widow or children, then to his relatives, presumption to the contrary. In applying naming them. The certificate in this case this rule to the distribution of the proceeds was made payable, upon the member's death, of a policy of insurance, the doctrine of to his wife. The member, together with his vested interest becomes an obstacle of grave wife and children, perished in the Jobnstown importance. Of course, if the policy is pay flood. Held, that there was no presumption able to the wife “and her legal representa of survivorship, and in the absence of comtives,” the interest of the wife is, in such case, petent and sufficient evidence to show that transmissible, and the question of vested in: | the wife, the nominated beneficiary, died beterest presents little difficulty. But wbere fore her husband, her legal representative the policy is payable simply to the beneficiary | was entitled to the fund. As a logical applion the death of the insured, or “if surviv cation of the doctrine of vested interest no ing," or on any other condition, the question criticism can be found with tbis decision, of vested interest assumes an importance,

but the inequitable result, to wbich a strict according to the meaning given to the word application of the doctrine has led the court "vested,” and especially so in the case in this case, shows clearly that it is not the where both insured and beneficiary perish right principle upon which to decide such in a common disaster. The same conflict of authority exists here which has been

19 Cowman v. Rogers, 73 Md. 403.

19 Fuller v. Linzee, 135 Mass. 468; Paden v. Briscoe,

81 Tex. 563. 17 75 N. Y. 78.

20 73 Md. 403.

questions. The husband in this case pro | children were lost at sea, and there was no cured the policy for the benefit and protec direct evidence as to which survived the tion of his wife and children after his death, other. The court held that the interest of and for this purpose alone be faithfully kept the wife in the policy was contingent on her up the payment of the premiums thereon. surviving her husband, and that the burden It is no stretch of the imagination to say that of proof was on her next of kin to show that it certainly was not his intention that this she survived. The court said: “He (the entire fund should, under any circumstances, insured) was providing for the disposition become the property of distant relatives of of a fund, which was not to exist until after his wife, who had no interest whatever in bis his death, and he made the provision by deslife. It is more natural to suppose that in ignating the persons to whom it was to be such case he would prefer his own estate or | paid, and his obvious intention was that it his own relatives as the beneficiaries of the should be paid to his wife, if she should surfund. That the intention of the insured is vive to take it, and to their children if she material in these cases bas been decided on should not survive. * * * We think, good authority.21 But apart from any ques | upon the view of the contract already taken, tion of intention, the application of the trust that the wife had no interest, transmissible fund doctrine easily disposes of the whole to her next of kin unless she survived her question. Under this view of the case, the husband, and that they cannot maintain their beneficiary is regarded as the cestui que trust, claim without proof that she survived him." and the insurance company as the trustee of | We have taken but a general view of this the fund represented by the policy, of which question, and have earnestly sought for right the insured may be regarded as the grantor. principles rather than to attempt to barThe fund is to be paid over to the beneficiary, monize the conflicting opinions of the courts or cestui que trust, on the bappening of all in the decision of individual cases. Courts, contingencies and compliance with all condi. in their zeal to protect the wife and children, tions named in the policy. The insurance have undoubtedly been led into the use of company, as trustee, can certainly not be words in defining the interest of such parties compelled to execute the trust until all con as beneficiaries of insurance, which do not tingencies have bappened and all conditions properly limit their rights under the policy, complied with, and the burden is upon the and which in many cases, could not be beneficiary, or her representatives, as against literally enforced without doing violence to the insurance company, to prove that all con all principles of life insurance and arriving tingencies have happened and all conditions at results that could not be other than inhave been complied with, before any title to equitable. The great purpose of such conthe fund vests in her; and unless her right tracts in making provision for the proto the fund is so proven there is a failure of tection of those interested in the life the trust and reversion of the fund to the in- l of the insured, against pecuniary loss by sured or his representatives. Where the reason of bis death in their lifetime, sbould policy provides that the beneficiary sball take, be kept constantly in view, and the assertion “if surviving," no difficulty should arise in of no legal quibbles or technicalities should any view of the case, as, in such case, sur be permitted to defeat the clear intention of vivorship is clearly a condition precedent to the insured under a reasonable construction the enjoyment of the fund, and upon the of the plain terms of the contract. representatives of the beneficiary must be the

ALEXANDER H. ROBBINS. burden of proving survivorship before they St. Louis, Mo. are entitled to take anything under the policy. In Fuller v. Linzee? the policy provided CRIMINAL LAW-CONTEMPT-ATTORNEY-IN. thal "in case the said insured should die be VALID ORDER-FAILURE TO OBEY. fore the decease of her busband," the amount

EX PARTE DUNCAN. of this insurance should be payable to their children. The husband and wife and their Court of Criminal Appeals of Texas, April 24, 1901.

An order of court, appointing a committee to ex. 21 Robinson v. Duval, 79 Ky. 83.

amine a candidate for admission to the bar, failed to 22 135 Mass. 468.

fix a time for the examination, as required by Rev.

Civ. St. art. 256, but the court inquired of an attorney have the money to pay the fine, I can pay it; if if he could act on the committee on the evening of a cer not, I will have to go to jail.'” The court then tain day, and the attorney answered that he could not said, “Mr. Clerk, enter a fine of $50 against be present at a night examination, but was placed on

Judge Duncan for contempt of court." It is the committee, the judge stating that he should be

shown by the evidence that it has never been the exeused if he could not attend. Held, that the attor. ney was not guilty of contempt in failing to appear

practice at that court, or in that district, for the at such time, since the order, though considered in

judge to compel members of the bar to serve on connection with the oral statement of the court, was such examining committees, and never before, in ncomplete and invalid; and where the attorney is the knowledge of witnesses, was a fine assessed arrested and brought into court under a judgment against, or an attachment issued for, a member and attachment for contempt in failing to appear at of such committee who failed to attend ; that the such examination, he is not guilty of contempt in re.

custom was either to postpone on account of the fusing to continue the examination as then directed

absence of one or more of the committee, or proby the court, since his presence was obtained by an illegal arrest, and he had the right to refuse to serve

ceed with the examination by the appointment while under such duress.

of other members of the bar. Relator further

states that he had no intimation in any way from DAVIDSON, P. J.: This is an original appli the judge at any time, after stating his reasons cation for the writ of habeas corpus. Relator was for not being able to attend the meeting of the appointed one of five attorneys to examine an committee at night, that he would still be ex. applicant for admission to practice law. The pected to attend or be fined or attached; and that order appointing this committee was entered on he had no notice or knowledge, or any reason to March 16th. The order failed to designate any suspect, until the morning of the 21st, that he time when the examination should occur. On was fined, or was to be fined or arrested, and that the 16th of March, relator being in the court the facts recited in the judgment of contempt room, the presiding judge asked him if he could rendered against bim ere placed there without serve upon the committee, and was informed, if his knowledge, and that he had no opportunity it did not occur at night, he could do so, but if at to see that the facts were correctly stated in the night it would be impossible for him to attend by | judgment; that it was wholly ex parte, and was reason of the fact that be lived remote from the prepared entirely under the direction of the trial court house, and could not leave his wife alone judge. at night. The district clerk states the judge then | This case involves and turns upon the question informed relator that he would appoint him any- of jurisdiction. If the jurisdiction of the court way, and if he could attend to do so, and, if not, properly attached to the person of the relator --of course I will excuse you." On the night of and the subject matter of the contempt, and the the 20th of March, all of the committee failed to facts showed contempt, then this writ should be attend except Hon. Cone Johnson. The judge refused, and the relator remanded. Article 256. fined the absent attorneys $25 each, and ordered Rev. Civ. St., provides : During the term of the clerk to issue attachment. These orders were the district court upon application in writing of not entered of record, but the attachment was any person desiring to obtain a permanent license issued, and the next morning was served upon to practice as an attorney and counselor at law relator, Duncan, in his office by two deputy in the courts of this state, the court sball, as soon sheriffs, who immediately escorted him to the as convenient, appoint a committee of three or court room, wbere be took a seat in front of the more practicing attorneys of good standing, and judge's stand. A few minutes afterwards Judge set a day for the examination of the applicant, on Russell, the district judge, took the bench and which day the committee so appointed shall in said, "Gentlemen, proceed with the examina open court proceed to examine the applicant; tion." Relator arose and said, "I decline to and if they or a majority of them and the court serve on this committee." The judge replied, are satisfied of his legal qualification, a report of ..Judge Duncan, I cannot excuse you;" to which that fact shall be made." The district courts of relator replied: "I cannot belp that. I will not this state being courts of record, every order serve. I told the court at tbe time of my ap made by such court must be entered of record. pointment that I could not serve on an examina- Upon the presentation of the application, it betion committee to meet at night. and gave the comes the duty of the court to appoint a comcourt my reasons for it. Now, I have been ar mittee, naming them; and this appointment, torested at my office this morning, and brought gether with the day appointed, must appear from over here under arrest by officers, under the order the records to have been made as any other juof this court, for failing to be present last night. dicial order must so appear. Until tbis bas been I have always treated this court as a gentleman, done, and the members of such committee have and I expect to be treated or must be treated by been notified, the court has no power to compel the court as a gentleman, if not as a member of any member of the committee to proceed with the bar.” The court replied, "I will not sit here the examination of such applicant. The question and allow you to reprimand the court, and I will then presented is, did the court have the power fine you if you do not desist from it." "I then to issue the attachment to compel the appearance took my seat, saying, "Well, if you fine me, and I of the relator? If it did, it must be held relator

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